Obtaining Justice for Victims of Strangulation in Domestic Violence: Evidence Based Prosecution and Strangulation-Specific Training

Strangulation accounts for 10-percent of violent deaths in the United States, with six female victims to every male victim.1 In the domestic violence context, strangulation is particularly a dangerous problem because the victim usually does not present with visible injuries. Therefore, despite the harmful health effects of strangulation and its indication of an ongoing pattern of abuse and a foreshadowing of escalating violence in the relationship, strangulation is minimized by the criminal justice system, often going un-arrested and un-prosecuted.

In general, there are many obstacles that prevent the successful arrest and prosecution of batterers in domestic violence cases. The two main hurdles are victim reluctance to participate in the criminal justice system, including victims recanting their initial statements, and three problematic Supreme Court cases regarding the Confrontation Clause and Forfeiture by Wrongdoing, which limit the admissibility of hearsay evidence and testimony. These two problems are amplified in the specific context of strangulation in domestic violence cases because, as previously mentioned, the victim often does not present with visible injuries. Consequently, the allegation of strangulation is frequently not acknowledged or investigated by either emergency room medical personnel or law enforcement officials. For all intents and purposes, there is no possibility of a successful case against the abuser who allegedly strangled his victim because evidence is not collected or documented.

This article discusses both the general obstacles to successfully prosecuting a domestic violence case as well as the specific difficulties when strangulation is involved. It suggests the use of evidence-based prosecution in combination with strangulation-specific training for law enforcement officials and, when feasible, emergency room medical personnel to overcome these difficulties. These measures will increase the likelihood of successful prosecution of strangulation in domestic violence cases and render batterers accountable for strangling their victims.

Strangulation: A Killer in Domestic Violence

Strangulation is one of the most dangerous forms of actual violence that occurs in the context of domestic violence cases.2 There is usually an allegation that the abuser grabbed, squeezed or crushed the victim’s throat with his hands or used a ligature.3 Although serious injuries may result from being strangled and strangulation is often an indication of an ongoing pattern of abuse or a foreshadowing of escalating violence, the victim often does not have visible injuries.4 Therefore, despite the frightening description of events, the victim does not receive medical attention, the act of strangulation is not included in police reports, strangulation is not charged by law enforcement as a crime and it is not prosecuted in court. In essence, strangulation, a lethal form of assault, is minimized or disregarded entirely, making it an even more life-threatening crime.

Strangulation is formally defined as “asphyxia” or “lack of oxygen caused by the closure of blood vessels and air passages in the neck resulting from external pressure.”5 It is commonly and incorrectly referred to as “choking” which involves an “internal blocking of the windpipe by an object,” 6 such as a piece of food or candy. The two forms of strangulation relevant in the context of domestic violence are ligature and manual strangulation. Ligature strangulation occurs when the strangler uses a “cord-like object,”7 which can include anything from a rope or cable to a scarf or a belt, to strangle the victim.8 In contrast, manual strangulation is done with the hands or, alternatively, with the forearm, in a position commonly known as the carotid restraint.9

Serious injuries, if not death, can result from strangulation within seconds. The “general clinical sequence of a victim who is being strangled is one of severe pain, followed by unconsciousness, followed by brain death.”10 Even if the victim does not go through all three stages of the clinical sequence, there can be many harmful health effects at each stage. These negative effects may be physical and include dizziness, nausea, sore throat, voice changes, throat and neck injuries, breathing problems, or swallowing problems.11 More critically, neurological effects from a lack of oxygen to the brain can occur in less than a minute, and include eyelid droop, facial droop, left or right side weakness, loss of sensation, loss of memory, or paralysis.12 Finally, and quite commonly, a victim can suffer from negative psychological effects including Post-Traumatic Stress Disorder, depression, suicidal ideation, or insomnia.13

The act of strangulation also symbolizes an abuser’s power and control over the victim.14 More importantly, the extremely violent nature of strangulation in domestic violence can serve as two important warnings. First, strangulation may indicate an ongoing pattern of abuse in the relationship.15 Reports have indicated that 40-percent of domestic violence victims described being strangled as part of abusive conduct at least once in their relationship.16 Second, it can foreshadow escalating violence within the already abusive relationship.17 Strangulation is typically one of the last abusive acts committed by a violent domestic violence partner before actual murder.18 When an abuser decides to put his hands around the victim’s neck and squeeze, he has indicated intent to cause great physical harm, if not death.19

Strangulation is more lethal than other forms of violence because, unlike a punch or a kick, it frequently does not leave marks on the skin or any other visible indications.20 As previously indicated, strangulation accounts for 10-percent of violent deaths each year and many of these victims “die without a single visible mark to the neck.”21 The San Diego Study, conducted by the San Diego City Attorney’s Office, reviewed 300 domestic violence cases involving attempted strangulation that were submitted for misdemeanor prosecution. The study showed that 50-percent of victims who had survived strangulation had no visible markings to the neck.22 Given the potential for serious injury, all allegations of strangulation should be taken seriously, investigated thoroughly and, if there is substantiation, the perpetrator should be arrested and prosecuted.23 However, because there are often no visible injuries, strangulation is minimized and treated as a trivial incident, comparable to pushing or a slap on the face, where only redness may appear.24 In actuality, strangulation is a much more serious and deadly crime.

Minimization is what makes strangulation one of the most dangerous forms of actual violence that occurs in domestic violence. Strangulation is minimized by both the victim and the criminal justice system including 911 dispatchers, emergency room medical personnel, law enforcement officials, prosecutors and judges.25 After being strangled, a victim may experience painful symptoms, such as difficulty breathing or lightheadedness. Yet, the victim often fails to inform law enforcement officials of these symptoms or declines medical attention.26 The victim’s attitude may cause a 911 dispatcher, a medical personnel employee, or a law enforcement official to underestimate allegations of strangulation. The lack of visible injuries only further underrates strangulation in the eyes of medical personnel and law enforcement officials. Consequently, many victims do not receive medical attention, strangulation does not appear in the police report and law enforcement officials do not document or collect evidence of strangulation.27 If there is no evidence, a prosecutor cannot prosecute a batterer for strangulation and a judge is not provided with all important information regarding a domestic violence incident. Thereby, both allowing the pattern of minimizing strangulation to continue and allowing a strangler to go unpunished.

General Obstacles to Successfully Prosecuting a Domestic Violence Case

Domestic violence can be challenging to prosecute because it is a crime that occurs in the privacy of one’s home.28 As a result, the only witnesses to the crime are often just the victim and the abuser.29 Despite the typical he-said/she-said complexities, a live victim, who has the ability to testify against her abuser, is the most common barrier to successfully prosecuting a batterer. Although it seems illogical that a live victim who can testify is a hurdle, studies have indicated that 80 to 85-percent of battered women will deny their allegations against an abuser at some point after the domestic violence incident and refuse to testify in court against their abuser.30 When a victim is reluctant to participate in the criminal justice system and recants her statements, a prosecutor faces the major obstacle of explaining to a judge or the jury why a victim is unavailable. It can be a very difficult task to convince a judge or the jury to accept that it is not a legal requirement for a victim to testify in court.31 Furthermore, a victim who is unavailable or is reluctant to testify as a witness also causes a judge or the jury to question the legitimacy of the initial domestic violence complaint.

As a substitute for victim testimony, prosecutors have been attempting to introduce hearsay evidence, in order to prosecute a batterer and explain the severity of the crime(s) committed.32 This evidence includes verbal statements given by the victim to the police upon arrival at the scene of a crime and written statements made by the victim in the form of affidavits or civil restraining orders.33 However, these efforts have been thwarted by the Supreme Court in three specific cases dealing with the Confrontation Clause and Forfeiture by Wrongdoing. Although it can be assumed that the Supreme Court did not intend to hinder prosecution of domestic violence cases, the practical effect of the rulings was to limit hearsay that may be admitted into evidence during trial.

Victim Reluctance to Participate in the Criminal Justice System

Although some women want their abusers arrested and prosecuted to the fullest extent of the law, many do not. Some victims will even take steps to obstruct prosecution.34 Society typically does not understand why a victim would protect her abuser from the criminal justice system. Although the phenomenon is perplexing, it can be explained, to some extent, by the unique and cyclical nature of domestic violence. In the first stage of domestic violence, an abuser acquires control by manipulating his victim’s daily activities and independence. The batterer also expands his control by demeaning the victim’s self-esteem through a combination of verbal and emotional abuse.35 In the next stage, the abuse escalates to physical assaults with “varying degrees of severity.”36 Finally, during the last stage, an abuser may apologize, make promises that the violence will end or profess his continued love and affection.37 The final stage tends to be followed by a period of calm before the cycle begins again. The victim often finds herself trapped in this endless cycle of power and control, too scared, fragile or hopeful the violence will end to break away.38

Often, even if a victim was initially cooperative in the investigation of her case and willing to testify in court against her abuser, batters use many methods to convince the victim to recant, or withdraw her statements and not testify. Batterers are skilled at the “art of manipulation,”39 they know how to exploit a victim’s weaknesses, especially drug and alcohol dependence, physical and mental disabilities, personal insecurities or her love for their children.40 Abusers use a variety of methods, which typically relate to the cycle of violence, in order to make a victim feel scared that she might lose the things she loves or cares about or make a victim feel guilty for calling law enforcement in the first place.

The first method used to convince a victim to recant her statements is to instill fear. Due to the first and second phases of the cycle of violence, a victim believes that her abuser will view cooperation with law enforcement or a prosecutor as a “hostile act.”41 The already established dynamic within the relationship causes a victim to fear that her abuser will retaliate.42 In fact, abusers often do retaliate; studies have shown that 30-percent of batterers physically or emotionally abuse their victims again, during their prosecution.43 The retaliation can take many different forms, ranging from the abuser physically attacking the victim, threatening to financially cut-off the victim if she testifies, or tricking the victim into believing that she can lose her job or her children when society finds out about the abuse.44

Another method used by abusers to dissuade a victim from testifying relates to the final stage of the cycle of violence. The abuser will make “promises of reform.”45 Abusers send love letters and flowers promising future happiness or they leave apologetic voicemails swearing that the abuse will never happen again.46 A victim often believes her abuser because she wants to. She may be in denial about the abuse, she may think that she and the victim are in love, or, if they have children together, she does not want to break up the family.

Finally, there are many situations in which a batterer’s family or friends also approach the victim to dissuade her from cooperating with law enforcement or testify in court against her abuser. A batterer’s family and friends are loyal to the batterer, often “to the detriment of the victim.”47 Family and friends use coercive methods, such as turning off the electricity, denying the victim and her children a place to live, or paying a victim to leave town so that she will not testify.48

The cycle of violence, which often leaves a victim fragile and scared, combined with pressure from an abuser and his family or friends not to testify, is likely to cause a victim to feel alone and that she is wrong for cooperating with law enforcement or a prosecutor. Predictably, many victims, who once sought police assistance, “surrender under the pressure of such effective manipulation and intimidation.”49

Three Problematic Supreme Court Cases

It has been demonstrated that relying on victim testimony can be extremely challenging; most victims do not want their abuser arrested and, more importantly, are reluctant to participate in the criminal justice system. As a result, law enforcement and prosecutors began to use other strategies and techniques to prosecute domestic violence abusers. Focus shifted from relying on victim participation to using hearsay or out-of-court statements made by victims and, in few cases, by observing witnesses.50 When a victim is unwilling to testify about a domestic violence incident, hearsay can be the only way to provide a description of what really happened.51 Hearsay also diminishes the incentive for abusers to threaten or manipulate their victims while awaiting trial because the abuser can still be prosecuted without a victim’s live testimony.52 Despite the effectiveness of hearsay in the prosecution of domestic violence cases, the Supreme Court determined that there are many instances in which the use of hearsay violates the Confrontation Clause and a defendant’s Sixth Amendment rights, and is therefore inadmissible evidence.53

In 2004, the Supreme Court significantly altered the doctrine of the Confrontation Clause in its treatment of “testimonial” statements made by an out-of-court declarant. In Crawford v. Washington,54 the Court ruled that out-of-court statements made by witnesses, which are testimonial in nature, are “barred” under the Confrontation Clause, unless the “witnesses are unavailable and defendants had prior opportunity to cross-examine the witnesses.”55 Although the Court did not specifically define “testimonial” statements, it did indicate that these statements were comprised of testimony given at a prior hearing, trial or grand jury proceeding and included police interrogations, as well.56 Unfortunately, most hearsay evidence used in domestic violence cases fell outside the scope of “testimonial” statements explained by the Supreme Court. As a result, the Crawford decision left behind “interim uncertainty,”57 a period in which courts split, had multiple definitions for “testimonial” statements, and prosecutors were unsure as to which hearsay evidence would be admissible, thereby complicating the prosecution of domestic violence cases. 58

Two years later, the Supreme Court slightly clarified Crawford with its ruling in Washington v. Davis59. The Court explained that statements are “non-testimonial” when they are made “in the course of police interrogations under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.”60 With this ruling, the Court refined “testimonial” to statements made when the “circumstances indicate that there is no such ongoing emergency and the primary purpose of the interrogation is to establish or prove past events.”61 Basically, a court must now evaluate the nature of questions asked by a 911 dispatcher or a law enforcement official responding to a crime scene to determine the “level of formality”62 and to “assess the primary purpose”63 of the questions.64 If a court determines that the questions were asked to “preserve information for later prosecution,”65 the statements will be considered testimonial and, in effect, inadmissible.66 Therefore, although the Supreme Court assisted prosecutors by more clearly distinguishing between “testimonial” and “non-testimonial” statements, the Court also definitively limited the type of hearsay which may be admitted into evidence during a domestic violence trial.

Domestic violence prosecution encountered another hurdle in 2008 with the decision in Giles v. California.67 This time, the Supreme Court addressed Forfeiture by Wrongdoing, a doctrine which allows the introduction of a witness’s out-of-court statements when the witness is “detained or kept away by the means or procurement of the defendant.”68 For example, prior to Giles, if an abuser killed his victim during a domestic violence incident, the victim’s previous statements regarding the abuse could be admitted as hearsay evidence during trial. The Court’s ruling in Giles limited the doctrine of Forfeiture by Wrongdoing. Now, if “the evidence suggested that the defendant had caused a person to be absent, but had not done so to prevent the person from testifying,”69 previous statements are inadmissible. After Giles, “testimony is excluded unless it was confronted or fell within the dying declarations exception.”70 The actual effect of Giles was to add an additional requirement for prosecutors. They must now prove that the defendant “specifically intended to keep a witness from testifying against him at [this] trial.”71

The Supreme Court’s rulings in Crawford, Davis, and Giles were intended to protect a defendant’s Sixth Amendment rights by limiting admissible hearsay evidence. Unfortunately, due to the unique nature of domestic violence, prosecutors relied on this type of hearsay evidence to prove their cases. Therefore, the practical effect of the Supreme Court’s rulings was to limit hearsay evidence which can be presented at trial for the successful prosecution of a domestic violence case.

Specific Obstacles to Successfully Prosecuting Strangulation in a Domestic Violence Case

The general obstacles to successfully prosecuting domestic violence also exist in the specific context of strangulation in domestic violence cases. As discussed above, victims are reluctant to participate in the criminal justice system and they often recant initial statements made to law enforcement officials. Furthermore, prosecutors face challenges during trial because of the Supreme Court’s decisions in Crawford, Davis, and Giles. However, these obstacles, which exist in almost all domestic violence cases, are amplified when a victim is strangled by her abuser. As previously discussed, unlike domestic violence incidents where a victim has bruises or broken bones, victims of strangulation do not present with visible injuries. Also, as previously discussed, this lack of visible injuries causes the criminal justice system to minimize strangulation from the beginning of the investigation. Emergency room medical personnel and law enforcement officials often either disregard or do not collect evidence of strangulation. As a result, unlike typical domestic violence cases which are simply difficult to prosecute, strangulation cases cannot be prosecuted at all. Furthermore, victims may be hesitant to even claim that strangulation occurred due to the low rate of domestic violence related strangulation cases addressed by emergency room medical personnel, law enforcement officials, and prosecutors.

When a victim of domestic violence informs medical personnel at an emergency room that she has been strangled, the report is often “under-evaluated.”72 The description of the attempted strangulation does not coincide with the fact that there are no visible markings to the neck. As a result, medical personnel consider strangulation to be an “exaggerated claim” by an “emotionally unstable victim” and do not look for medical evidence or entirely disregard symptoms of strangulation which may be present.73 For example, hoarseness, which occurs in up to 50-percent of strangulation victims, is often attributed to screaming during an argument.74 Or, subconjuctival hemorrhages, which are broken blood vessels in the eye common in victims of strangulation, are misdiagnosed as pink eye or as an indication of drug use.75 If there is, in fact, any evidence or admission of drug or alcohol use by the victim, emergency room medical personnel are usually even more unwilling to examine allegations of strangulation.76 In reality, medical personnel should be performing the appropriate workup because they have the most training in determining if there are serious internal injuries resulting from strangulation. Instead, emergency room personnel are the first to minimize the severity of strangulation.

Similarly, law enforcement officials frequently do not investigate allegations of strangulation either. Law enforcement officials rely on physical evidence to determine if there is probable cause to arrest a perpetrator. Therefore, when a victim does not present with visible injuries, law enforcement officials typically do not think an arrest-able or prosecutable crime has occurred. Unfortunately, this occurs all too often; the San Diego Study, previously discussed, reported that police officers found no visible injuries in 62-percent of strangulation cases and only minor injuries, such as redness or scratch marks, in 22-percent of cases.77 Due to the lack of physical evidence, law enforcement officials typically do not document allegations of strangulation in police reports or investigate. The major flaw in this practice is that even though there are no visible injuries present, a victim can still inform an investigator of other “subjective indications of strangulation or the [abuser’s] intent.”78 However, victims may be too emotional to know what information is important to disclose and law enforcement officials often overlook evidence of strangulation simply because they do not know what questions to ask to prove strangulation.

When emergency room medical personnel and law enforcement officials do not properly evaluate allegations of strangulation and minimize the incident, a prosecutor cannot bring charges or prosecute a batterer for strangling his victim. As a result, batterers who strangle their victims are not held accountable. This outcome is an indication that a new practice should be developed which combines the elements needed for a successful prosecution with the investigative skills of law enforcement, and when possible, emergency room medical personnel, to ensure that abusers are prosecuted for strangling their victims.Continued on Next Page »